J-A05020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ABIGAIL MULLER, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THE AQUATIC AND FITNESS CENTER 

D/B/A AFC JENKINTOWN, AQUA HAB, 

L.P. D/B/A THE AQUATIC AND FITNESS 

CENTER AT JENKINTOWN, AQUA HAB, 

L.P. AND KYLE DONAHUE,

Appellees No. 1636 EDA 2014

Appeal from the Order entered April 15, 2014,

in the Court of Common Pleas of Philadelphia County,

Civil Division, at No(s): October Term, 2012 No. 0667

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED MARCH 09, 2015

Abigail Muller, (“Appellant”), appeals from the trial court’s order 

granting summary judgment in favor of The Aquatic and Fitness Center 

d/b/a AFC Jenkintown, Aqua Hab, L.P. d/b/a The Aquatic and Fitness Center 

at Jenkintown, Aqua Hab, L.P. and Kyle Donahue, (“Gym” and “Donahue”). 

We affirm. 

The trial court detailed the factual and procedural background relative 

to this action as follows:

[Appellant] joined [Gym] as a member in 2004 and at that time 

signed a Membership Application/Contract. Directly above the 

signature line, the Contract contained the following language 

under the heading "Notice":
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Any holder of this contract or not [sic] is subject to tall 

[sic] claims and defenses which the debtor could assert 

against the seller of goods or services obtained pursuant 

hereto or with the proceeds hereof. Recovery hereunder 

by the debtor shall not exceed amounts paid by the debtor 

shall not exceed amounts paid by the debtor [sic] 

hereunder. l/we accept full responsibility for my/our use 

of any and all apparatus, appliance, facility, privilege, or 

service whatsoever, owned and operated by the Aquatic 

and Fitness Center at Jenkintown, or while engaging in any 

contest, game, function, exercise, either on or off the 

Aquatic and Fitness Center at Jenkintown Premises, shall 

do so at my own risk, and shall hold The Aquatic and 

Fitness Center at Jenkintown, its partners, shareholders, 

directors, officers, employees, representatives, and 

agents, harmless from any and all loss, claim, injury, 

damage, or liability sustained or incurred by me/us, 

resulting from any act or omission of an officer, employee, 

representatives, owners and agents and/or any of the 

affiliated companies hereunder in respect of any such loss, 

cost, claim, injury, damage or liability sustained or 

incurred by using The Aquatic and Fitness Center at 

Jenkintown.

Despite having signed her name at the bottom of the 

contract, and although she did not suggest that she was forced 

or rushed while signing the contract, [Appellant] did not read the 

contract. [Appellant] remained a member of the Aquatic and 

Fitness Center for the next several years and on May 26, 2011 

entered into an additional contract called a Personal Training 

Agreement for a series of personal training sessions with 

[Donahue]. That contract contained the provision: 

I acknowledge that there are risks involved in any physical 

training program and that some of the equipment used in 

a training program may also have inherent risks. I accept 

full responsibility for any accidents and/or injuries that 

may be a direct or indirect result of the equipment that is 

provided by The Aquatic and Fitness Center or by one of 

the personal trainers operating on its premises. It is my 

choice to participate in a physical training program and I 

release The Aquatic & Fitness Center and any personal 

trainer operating on its premises from all liabilities.
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[Appellant] initialed several paragraphs on this one-page 

document and signed and dated the bottom. [Appellant] does 

not recall having read this contract prior to signing it. On May 

31, 2011, [Appellant], who was at that time 59 years old, 

attended a personal training session with Donahue. While 

performing a plank exercise under Donahue's direction in which 

she was to rotate her right arm and torso vertically while 

keeping her left arm on a bench, [Appellant’s] shoulder 

dislocated. [Appellant] claims that she is now prone to 

subsequent shoulder dislocation, has needed surgery, and will 

most likely need additional surgery including possibly a joint 

replacement procedure.

Trial Court Opinion, 4/15/14, at 1-2. 

Appellant initiated her action against Gym and Donahue on October 4, 

2012. In due course, following the resolution of preliminary objections, the 

trial court’s denial of Gym’s and Donahue’s motion for judgment on the 

pleadings, and at the conclusion of discovery, Gym and Donahue filed a 

motion for summary judgment on February 3, 2014. On March 6, 2014, 

Appellant filed her answer in opposition to Gym and Donahue’s motion for 

summary judgment. On April 9, 2014, the trial court issued an order and 

memorandum opinion granting summary judgment in favor of Gym and 

Donahue. The trial court’s April 9, 2014 order was entered on the docket on 

April 15, 2014. On May 2, 2014, Appellant moved for reconsideration, 

claiming for the first time that the contracts violated the Pennsylvania Health 

Club Act, (“HCA”), and the Pennsylvania Plain Language Consumer Contract 

Act (“PLCCA”). On May 14, 2014, the trial court denied Appellant’s motion 

for reconsideration. On May 14, 2014, Appellant filed a notice of appeal. 

The trial court did not order compliance with Pa.R.A.P. 1925(b). 
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Appellant presents the following issues for our review:

QUESTION NO. 1: Did the trial court err as a matter of law 

when it concluded the exculpatory clauses, drafted by [Gym], 

spelled out the intention of the parties with the greatest of 

particularity and put it beyond doubt, by express stipulation, the 

intention of [Appellant] that [Gym] would be exculpated from 

responsibility for their own negligence?

QUESTION NO. 2: Did the trial court err as a matter of law 

when it failed to view the evidence and the reasonable 

inferences therefrom in a light most favorable to [Appellant] and 

failed to conclude there was an issue of fact as to whether the 

exculpatory clauses were conspicuous and obvious such that 

they should have engaged the attention of a reasonable person 

that she was waiving important legal rights when she signed her 

gym membership and personal training agreement?

QUESTION NO. 3: Did the trial court err as a matter of law 

when it concluded the exculpatory clauses were valid and 

enforceable even though the terms of the Membership 

Application/Contract violated the Pennsylvania Health Club Act?

QUESTION NO. 4: Did the trial court err as a matter of law 

when it concluded that the exculpatory clauses were valid and 

enforceable even though they violated Pennsylvania public policy 

as expressed by the General Assembly in the Pennsylvania Plain 

Language Consumer Contract Act?

QUESTION NO. 5: Did the trial court err as a matter of law and 

fail to consider the record evidence in a light most favorable to 

[Appellant] when it concluded that the contracts containing the 

exculpatory clauses were not contracts of adhesion in the face of 

record evidence that [Gym] had never negotiated, modified, or 

altered the exculpatory clauses in the Membership Application?

Appellant’s Brief at 3-4. 

All of Appellant’s issues challenge the trial court’s grant of summary 

judgment in favor of Gym and Donahue based on the trial court’s 

interpretation of the agreements between the parties, including the 
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exculpatory language contained therein. We will therefore address 

Appellant’s issues together. 

We recognize:

Our scope of review ... [of summary judgment orders] ... is 

plenary. We apply the same standard as the trial court, 

reviewing all the evidence of record to determine whether there 

exists a genuine issue of material fact. We view the record in 

the light most favorable to the non-moving party, and all doubts 

as to the existence of a genuine issue of material fact must be 

resolved against the moving party. Only where there is no 

genuine issue as to any material fact and it is clear that the 

moving party is entitled to judgment as a matter of law will 

summary judgment be entered. 

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of his cause of 

action. Summary judgment is proper if, after the completion of 

discovery relevant to the motion, including the production of

expert reports, an adverse party who will bear the burden of 

proof at trial has failed to produce evidence of facts essential to 

the cause of action or defense which in a jury trial would require 

the issues to be submitted to a jury. Thus a record that 

supports summary judgment will either (1) show the material 

facts are undisputed or (2) contain insufficient evidence of facts 

to make out a prima facie cause of action or defense and, 

therefore, there is no issue to be submitted to the jury. Upon 

appellate review we are not bound by the trial court’s 

conclusions of law, but may reach our own conclusions. The 

appellate Court may disturb the trial court’s order only upon an 

error of law or an abuse of discretion. 

Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012) 

(internal citation omitted). 

Here, the trial court explained in great detail:

When evaluating exculpatory clauses, which are not 

favored in the law, courts construe the clauses strictly and 

against the party asserting their validity. Zimmer v. Mitchell & 
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Ness, 385 A.2d 437, 439 (Pa. Super. 1978) aff’d 416 A.2d 1010 

(1980). The enforceability of exculpatory clauses in contracts 

has been addressed by the Pennsylvania Supreme Court:

It is generally accepted that an exculpatory clause is valid 

where three conditions are met. First, the clause must not 

contravene public policy. Secondly, the contract must be 

between persons relating entirely to their own private 

affairs and thirdly, each party must be a free bargaining 

agent to the agreement so that the contract is not one of 

adhesion ... once an exculpatory clause is determined to 

be valid, it will, nevertheless, still be unenforceable unless 

the language of the parties is clear that a person is being 

relieved of liability for his own acts of negligence. 

In interpreting such clauses we listed as guiding standards 

that: 1) the contract language must be construed strictly, 

since exculpatory language is not favored by the law; 2) 

the contract must state the intention of the parties with 

the greatest particularity, beyond doubt by express 

stipulation, and no inference from words of general import 

can establish the intent of the parties; 3) the language of 

the contract must be construed, in cases of ambiguity, 

against the party seeking immunity from liability; and 4) 

the burden of establishing the immunity is upon the party 

invoking protection under the clause. 

Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 

1174, 1189 (Pa. 2010). At no point does [Appellant] appear to 

argue that enforcing an exculpatory clause in this situation would 

contravene public policy, nor does [Appellant] suggest that this 

matter is not entirely between private parties. [FN2: On Page 

15 of [Appellant’s] Memorandum of Law, [Appellant] notes that 

the clauses violate public policy, but does not unpack this 

assertion except to argue that the clauses are contracts of 

adhesion.]

As a preliminary matter, this Court notes that [Appellant] 

did not read either of the contracts that she signed (or, at the 

very least, does not remember having read them). Pennsylvania 

courts have consistently held that one about to sign a contract is 

duty bound to read it. Leuten Brick Co. v. Killen, 83 A. 576 

(1912). Failure to read a contract before signing it cannot be 

used to justify avoidance, modification, or nullification of any 

part of a contract. In re Estate of Olson, 291 A.2d 95, 97 (Pa. 
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1972). Therefore, to the extent [Appellant] seeks to be deemed 

exempt from the terms of the contract she signed on the basis of 

her failure to read the contract, she may not do so. [FN3: 

Although [Appellant] notes that she was not specifically given 

time to read the contract, at no point does she argue that she 

signed the contract under duress, or that her feeling of being 

rushed could be the basis for invalidating the exculpatory 

clause.] 

First, [Appellant] argues that whether or not the contracts 

are ones of adhesion, they are ambiguous and fail to meet the 

drafting requirements outlined in Beck-Hummel v. Ski Shawnee, 

Inc., 902 A.2d 1266 (Pa. Super. 2006). Finding guidance in the 

case law relating to warranty disclaimers under Pennsylvania's 

Uniform Commercial Code, the Superior Court held that the 

following factors are relevant in determining whether a 

reasonable person should have noticed a disclaimer: (1) the 

disclaimer's physical placement in the document; (2) the size of 

the disclaimer's print; and (3) whether the disclaimer was 

highlighted by being printed in all capital letters or in a type or 

size or color different from the remainder of the document. 

Beck-Hummel at 1274.

This Court first observes that the clause at issue in the 

Membership Agreement is near the end of the document, directly 

above where a new member is expected to sign and date. 

Therefore, a new member’s eyes, by definition, must fall at or 

near the disclaimer. This is directly distinguishable from the 

clause at issue in Beck-Hummel, which was printed on the back 

of a ski lift ticket. Here, [Appellant] was presented with two 

documents, each of which serves no other purpose than to be a 

contract between the parties; the documents are clearly labeled 

"Contract" and "Agreement." [Appellant] therefore was aware 

that a contract existed, and that a contract is what she was 

signing. This Court therefore finds that the placement of the 

clause in this case is such that a reasonable person ought to 

notice it, as it is mere inches from the space where a new 

member expressly indicates his or her assent to the contract. 

[FN4: This Court also notes that the paragraph before the 

exculpatory clause, relating to the Buyer's Right to Cancel, is 

required by law to be "in immediate proximity to the space 

reserved in the contract for the signature of the buyer" and in 

ten point font. 73 P.S. §201-7. Even with this requirement in 

mind, [Gym and Donahue] placed the exculpatory clause even 

closer to the signature line than the Right to Cancel notice. This 
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requirement reflects the Legislature’s recognition that the space 

immediately above the signature line is a space where a 

reasonable person ought to be looking when they are reading 

and signing the contract.]

Similarly, the placement of the exculpatory clause in the 

Personal Training Agreement is placed inches above the 

signature line, and is placed such that it falls directly under a set 

of bullet points that are indented. The entire document is one 

page, and in bold italics at the top is the statement "The 

following details are important guidelines, which will allow you to 

get the most out of your Personal Training Sessions." 

[Appellant] signed her name and dated the document in a space 

right below the sentence. [Appellant] argues that the font size 

of the disclaimer here is not sufficiently large to pass the drafting 

requirements of Beck-Hummel. This Court disagrees. Even 

using the images [Appellant] has clearly shrunken, copied, and 

pasted into the body of her Memorandum of Law, the language 

is readable. The text at issue is neither bigger nor substantially 

smaller than the language in the rest of the contracts, and this 

Court is unaware of any case that renders an exculpatory clause 

unenforceable solely on the basis of font size. [FN5: The 

Membership Agreement, when presented as an exhibit, is a little 

less than the size of a standard piece of paper. The image of the 

contract as it appears in the body of [Appellant’s] Memorandum 

of Law (in the section of the Memorandum in which font size is 

discussed) is 5.75" by 5.3, and appears to be a poor quality 

image with visual background noise. [Appellant] has also 

reduced the size of the Personal Training Agreement to 5.5" by 

4.3" in the body of her memorandum, where the actual size of 

the document is that of a standard sheet of paper. The language 

of both clauses is still readable.]

As to whether the disclaimer is highlighted, this Court 

notes that the Membership Contract, as a whole, is divided into 

several sections, and that the exculpatory clause is under the 

heading “Notice”, which in bold font, and is the only bold font 

center-justified heading in the document. This Court also finds 

that the word “Notice”, in bold font, is sufficiently clear such that 

it would inform a reader of a Contract she was about to sign that 

she was being put on notice of something. 

The clause in the Personal Training Agreement is also 

prominent enough such that a reasonable person would see and 

read the language. It is the first paragraph in the document that 
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is not part of the bullet-point list and thus appears to be visually 

distinguishable from the remainder of the document. The 

paragraph contains only sentences that have to do with the fact 

that the reader is releasing "The Aquatic and Fitness Center and 

any personal trainer” from all liabilities.

[Appellant] cites Brown v. Raquetball Centers, Inc., 534 

A.2d 842 (Pa. Super. 1987) in support of her position that the 

clause at issue is ambiguous. [Appellant’s] reliance on Brown is 

misplaced. In that case, the plaintiff, while exiting the shower 

facility, slipped on a wet floor. The plaintiff had signed a waiver 

indicating that he "assume[d] all risks of injury to my person and 

property that may be sustained in connection with the stated 

and associated activities in and about those premises." Id. The 

Superior Court in Brown held that the clear import of the above 

language was to relieve the defendant of liability for things that 

happened while the Plaintiff was participating in the "stated and 

associated activities" of the racquetball club, and not while 

simply present on the defendant's property. No such ambiguity 

exists here. The clause results in [Appellant] holding the [Gym 

and Donahue] harmless for "any and all" loss resulting from 

"any" act or omission []. Furthermore, [Appellant] in this case 

did injure herself while exercising — an activity that clearly falls 

within the language of both the Membership Contract and the 

Personal Training Agreement. 

***

[Appellant] also argues that the contract is insufficiently 

particular as to who was being released from liability because 

the Membership Agreement only uses the name “The Aquatic 

and Fitness Center at Jenkintown” in the exculpatory clause, 

where this is merely a corporate name of [Gym], the defendant 

in this case. This fact is not disputed. [Appellant’s] suggestion 

that the relationship between [Gym] and The Aquatic and Fitness 

Center at Jenkintown is never addressed in the membership 

agreement is refuted by the language of the Agreement itself: 

the first column of the agreement contains the phrase "Aqua Hab 

d/b/a "The Aquatic and Fitness Center at Jenkintown." A 

reasonable person reading the contract she is about to sign, 

therefore, would be on notice as to the relationship between 

these two names and would understand that that clear import of 

the language is to relieve defendants of liability. 
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This Court also agrees with [Gym and Donahue] that 

because The Aquatic and Fitness Center at Jenkintown is merely 

a corporate name of Aqua Hab, L.P., and because a corporation 

operating under a corporate or fictitious name may validly enter 

into contracts, the Membership Agreement clearly relieves [Gym 

and Donahue] of liability, both under the law and under the 

terms of the contact. 

As to the Personal Training Agreement, [Appellant] 

presents a list of nine reasons why she feels the language of the 

contract is not sufficiently precise. For example, [Appellant] 

suggests that it is "not clear that the contract refers to the 

Aquatic and Fitness Center", despite the contract having been 

presented to [Appellant] on letterhead bearing that exact name, 

and despite the fact that the last words of the exculpatory clause 

are "I release The Aquatic & Fitness Center and any personal 

trainer operating on its premises from all liability."

[Appellant] also suggests that a plain reading of the 

contract would leave one with the impression that the 

exculpatory clause only applies [to] injuries connected to use of 

equipment. To support this suggestion, [Appellant] cites the 

second sentence of the clause, which does relate to equipment 

use. [Appellant] neglects to note that this sentence begins with 

the word "Furthermore" and comes after the sentence that reads 

"I accept responsibility for any accidents and/or injuries that 

may be a direct or indirect result of participating in a training 

program." [Appellant] is therefore correct that the sentence she 

cites relates to equipment, there being a separate sentence 

relating to incidents "directly or indirectly" related to personal 

training. 

[Appellant’s] reasons as to why she feels the contract is 

unclear, many of which are directly refuted by the record, are 

not a sufficient basis for this Court to invalidate the exculpatory 

clauses at issue on the basis of drafting ambiguities.

[Appellant] also argues that the contracts at issue are 

contracts of adhesion because they unreasonably favor the 

drafter and because she had no meaningful choice with regard to 

acceptance of the contractual provisions. This Court disagrees.

Courts have consistently held that an exculpatory 

agreement between private parties for a voluntary, recreational 

activity is not a contract of adhesion under Pennsylvania law. 

Where each party is free to participate or not participate in an 
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activity, and where a plaintiff is under no obligation, economic or 

otherwise, to engage in a particular activity, a contract that has 

"all the hallmarks" of one of adhesion is nonetheless enforceable. 

Chepkevich, 2. A.3d at 1190. [FN6: [Appellant] argues that 

because only three Justices participated in the majority opinion, 

it is not binding on this Court. Even if this were true, it is 

instructive and consistent with the numerous other trial and 

appellate court decisions relating to contracts for recreational 

activities.]

This Court certainly appreciates that a regular fitness 

routine is an admirable habit and is probably personally 

satisfying to many people. However, [Appellant] makes no 

attempt to argue that attendance at a fitness facility falls closer 

to employment or housing than skiing or other sports on the 

spectrum of life's necessities. [Appellant] had the choice to 

participate in personal training sessions or not. [Appellant] also 

testified at her deposition that there were "several" other gyms 

or workout facilities in Jenkintown and the surrounding area that 

she could have driven to in under 20 minutes. This Court must 

therefore conclude that a session with a personal trainer is 

essentially a recreational activity, and one from which 

[Appellant] could have simply walked away if she were 

unsatisfied with the terms of the contract presented to her. 

Trial Court Opinion, 4/15/14, at 3-10. Based on applicable jurisprudence 

and our careful scrutiny of the record viewed in the light most favorable to 

Appellant, we find that the record supports the trial court’s determination 

that Gym and Donahue are entitled to judgment as a matter of law. 

Initially, Appellant contends that the agreements violate public policy 

because they contravene the HCA and the PLCCA. However, our review of 

the record reflects that Appellant has failed to properly present and develop 

these arguments, such that we find them waived for appellate review. 

Appellant did not assert violations of the HCA and the PLCCA within her 

original or amended complaints. See generally Complaint, 1/16/13; see 
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also generally Amended Complaint, 2/15/13. Indeed, Appellant concedes 

as much in her reply brief. See Reply Brief of [Appellant], at 7-8 (“[Gym 

and Donahue are] correct in that [Appellant’s] complaint sounds in 

negligence. [Gym and Donahue are] also correct that ‘[A]ppellant raises 

these new claims not in an amendment to her complaint.’”) (emphasis 

supplied). More importantly, Appellant did not raise the alleged HCA and 

PLCCA violations within her answer in opposition to Appellant’s motion for 

summary judgment, as required by our rules of civil procedure governing 

motions for summary judgments. See Pa.R.C.P. Rule 1035; See Walsh v. 

Borczon, 881 A.2d 1, 5 (Pa. Super. 2005) (“Because, under [Pa.R.C.P.] 

Rule 1035.3, the non-moving party must respond to a motion for summary 

judgment, he or she bears the same responsibility as in any proceeding, to 

raise all defenses or grounds for relief at the first opportunity. A 

party who fails to raise such defenses or grounds for relief may not assert 

that the trial court erred in failing to address them[.]”) (emphasis supplied). 

Indeed, the trial court remarked that while Appellant asserted generally 

“that the clauses violate public policy,” Appellant did not “unpack this 

assertion except to argue that the clauses are contracts of 

adhesion.” Trial Court Opinion, 4/15/14, at 4 n.2 (emphasis supplied). 

Significantly, within her appellate brief, Appellant fails to support her 

PLCCA argument with any PLCCA related jurisprudence, relying instead on 

citations to the PLCCA and the PLCCA’s preamble. See Appellant’s Brief at 

24-31; 42-43. Moreover, Appellant’s citations to a 1993 non-binding 
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Eastern District of Pennsylvania case, and to a 2009 Pennsylvania Supreme 

Court case, are deficient because they only assert general propositions of 

law. See id. at 30 and 42. Likewise, Appellant’s HCA discussion fails for 

lack of development. Appellant only cites to the HCA and a common pleas 

action which does not pertain to the HCA. See Appellant’s Brief at 40-41; 

see also Giant Food Stores, LLC v. THF Silver Spring Development, 

L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (finding waiver where appellant 

failed to cite jurisprudence in support of its argument).

Waiver notwithstanding, Appellant’s contentions fail because 

“[c]ontracts against liability, although not favored by courts, violate public

policy only when they involve a matter of interest to the public or the state. 

Such matters of interest to the public or the state include the employeremployee relationship, public service, public utilities, common carriers, and

hospitals.” Seaton v. East Windsor Speedway, Inc., 582 A.2d 1380, 

1383 (Pa. Super. 1990). The instant contracts do not pertain to such 

relationships or matters, and we do not find that they violate public policy. 

We further find that the contracts, and the exculpatory language 

contained therein, were executed between private entities regarding their 

own affairs, and while each party was a free bargaining agent. We agree 

with the trial court’s rationale that the contracts between Appellant, Gym, 

and Donahue did not constitute contracts of adhesion. See Trial Court 

Opinion, 4/15/14, at 9-10. Appellant was “free to participate or not to 

participate” in fitness activities at Gym’s facilities and in personal training 
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with Donahue, and Appellant was “under no compulsion, economic or 

otherwise, to engage” in those activities or to execute the agreements with 

Gym or Donahue. Valeo v. Pocono Intern. Raceway, Inc., 500 A.2d 492, 

493 (Pa. Super. 1985); see also Chepkevich, 2 A.3d at 1190 (noting 

“contracts executed in the course of voluntary participation in recreational 

activities have not been declared unenforceable” as contracts of adhesion).

Moreover, Appellant concedes that “[u]nder Pennsylvania law, the 

exculpatory language must meet the high burden of spelling out the 

intentions of the parties with the ‘greatest’ of particularity.” Appellant’s Brief 

at 16, citing Topp Copy Products, Inc., 626 A.2d 98, 99 (Pa. 1993). We 

find that the agreements between Appellant, Gym, and Donahue met this 

requirement. The exculpatory language in the membership 

application/contract, which Appellant signed, stated Appellant “accept[ed] 

full responsibility” for her “use of any and all ... facility ... or service 

whatsoever, owned and operated by the Aquatic Fitness Center at 

Jenkintown, or while engaging in any ... exercise,” and doing “so at 

[Appellant’s] own risk.” Membership Application/Contract, 5/26/04, at 1. 

Appellant further specifically agreed to hold Gym, “its partners, 

shareholders, directors, officers, employees, representatives, and agents, 

harmless from any and all loss, claim, injury, damage, or liability sustained 

or incurred by [Appellant], resulting from any act or omission of an officer, 

employee, representatives, owners and agents and/or any of the affiliated 

companies hereunder[.]” Id. The agreement expressly stated that 
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Appellant had “read the agreement including the terms and conditions on 

the reverse side of this application.” Id. Appellant’s signature 

“constitute[d] full acceptance of this agreement including the terms and 

agreements set forth here[.]” Id. The language in the personal training 

contract, which Appellant executed, “acknowledge[d] that there are risks 

involved in any physical training program”, and Appellant agreed that she 

“accept[ed] full responsibility for any accidents and/or injuries that may be a 

direct or indirect result of participating in a training program.” Personal 

Training Contract, 5/26/11, at 1. Significantly, Appellant expressly 

“release[d] The Aquatic & Fitness Center and any personal trainer operating 

on its premises from all liabilities.” Id. The foregoing agreements, including 

the exculpatory language set forth therein, support the trial court’s grant of 

summary judgment in favor of Gym and Donahue. 

Contrary to Appellant’s arguments, the record and applicable case law 

viewed in the light most favorable to Appellant, reflects that the contracts 

which Appellant executed include exculpatory language which expressed 

with the greatest of particularity, and in clear and unambiguous terms, that 

Appellant was relieving Gym and Donahue of any and all liability regarding 

any acts or omissions. The contracts are not against public policy, involve 

private parties regarding their own affairs, and are not contracts of 

adhesions. Accordingly, we find that the trial court did not err or abuse its 

discretion in determining that Gym and Donahue were entitled to judgment 

as a matter of law. Zimmer v. Mitchell and Ness, 385 A.2d 437 (Pa. 
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Super. 1978) (exculpatory clause with broad language of “any liability” 

deemed valid, not ambiguous, and to include negligence); see also BeckHummel, supra, at 1274; Nissley v. Candytown Motorcycle Club, Inc.,

913 A.2d 887, 890 (Pa. Super. 2006) (exculpatory clause deemed valid 

where upon acknowledging the risks inherent in the defendant’s business, 

appellant signed waiver releasing defendant of liability). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2015